1 FCC Fifth Report and Order Excerpts from the Order FCC 04-190 Adopted: August 4, 2004 Released: August 13, 2004.

1

FCC Fifth Report and Order

• Excerpts from the Order• FCC 04-190• Adopted: August 4, 2004• Released: August 13, 2004

2

Fifth Report and Order Topics

1. Recovery of Funds2. Audit Timeframe3. Elimination of the Offset Options4. Red Light Rule Extended5. Document Retention Requirements6. Technology Plans7. Certifications – Forms 470, 471 and 4738. USAC Plan for Timely Audit Resolution9. USAC Annual List of Administrative

Procedures

3

Recovery of Funds

First, we set forth a framework regarding what amounts should be recovered by the Universal Service Administrative Company (USAC or Administrator) and the Commission when funds have been disbursed in violation of specific statutory provisions and Commission rules. (paragraph 1)

4

Recovery from Various Audits

Collectively, USAC and other entities have audited over $1.1 billion in total disbursements out of $4.7 billion disbursed in the first three years of the program, representing 23.55% of funds disbursed. USAC has sought recovery of $18 million, based on these audit findings. (footnote 17)

5

Recovery May Not Be Appropriate

• For example, when the administrative costs of recovering funds disbursed in violation of a rule exceed the improperly disbursed amount, it may be reasonable not to seek recovery.

• Likewise recovery may not be appropriate for violation of procedural rules codified to enhance operation of the e-rate program. (paragraph 19)

6

Procedural Rules

Applicants will be required to comply with procedural rules in applying for support – and applications that do not comply will be rejected. (paragraph 19)

7

Amounts Disbursed in Violation

Amounts disbursed in violation of the statute or a rule that implements the statute or a substantive program goal must be recovered in full. (paragraph 20)

8

Erroneous Amount Disbursed

In situations where disbursement of funds is warranted under the statute and rules, but an erroneous amount has been disbursed, the amount of funds that should be recovered is the difference between what the beneficiary is legitimately allowed under our rules and the total amount of funds disbursed to the beneficiary or service provider. (paragraph 20)

9

Recovery – CompetitiveBidding Requirements (1)

We conclude that we should recover the full amount disbursed for any funding requests in which the beneficiary failed to comply with the Commission’s competitive bidding requirements as set forth in section 54.504 and 54.511 of our rules and amplified in related Commission orders. (paragraph 21)

10


• It is appropriate to recover the full amount of funds disbursed for a funding request when the beneficiary signs a contract before the end of the 28-day posting period.

• Likewise, it is appropriate to recover the full amount disbursed in a situation where the beneficiary failed to consider price as the primary factor when evaluating among competing bids. (paragraph 21)

11


We note that our rules do not require applicants to affirmatively seek out price quotes from multiple sources if no service provider responds to a Form 470 posting. (footnote 41)

12

Recovery – NecessaryResources Certification

• We conclude that a lack of necessary resources to use the supported services warrants full recovery of funds disbursed for all relevant funding requests.

• The requirements that beneficiaries have sufficient computer equipment, software, staff training, internal connections, maintenance and electrical capacity to make use of the supported services are integral to ensuring that these monies are used for their intended purposes, without waste, fraud or abuse. (paragraph 22)

13

Recovery – ServiceSubstitutions (1)

We conclude that in situations where a service substitution would meet the criteria now established in our rules, the appropriate amount to recover is the difference between what was originally approved for disbursement and what would have been approved, had the entity requested and obtained authorization for a service substitution. (paragraph 23)

14

Recovery – ServiceSubstitutions (2)

In situations where the service substitution would not meet the criteria established in our rules, the appropriate amount to recover is the full amount associated with the service in question. (paragraph 23)

15

Recovery – Failure to PayNon-discounted Share

• We conclude that all funds disbursed should be recovered for any funding requests in which the beneficiary failed to pay its non-discounted share.

• We clarify prospectively that a failure to pay more than 90 days after completion of service (which is roughly equivalent to three monthly billing cycles) presumptively violates our rule that the beneficiary must pay its share. (paragraph 24)

16

Recovery – Duplicative Services

• Our rules prohibit the funding of duplicative services, defined as services that provide the same functionality to the same population in the same location during the same period of time.

• In such circumstances, we ordinarily will recover the amount associated with the more expensive of the duplicative services, except in situations where there are indications of fraud, where we may recover the full amount of the funding request. (paragraph 25)

17

Recovery – Failure to Complete Service within the Funding Year

We conclude that the failure to complete delivery of services by the relevant deadline for a particular funding year is a rule violation that warrants recovery of all funds disbursed for services installed or delivered after the close of the funding year. (paragraph 26)

18

Recovery – DiscountCalculation Violation (1)

When applicants fail to calculate properly their appropriate discount rate, the amount disbursed in violation of this rule is the difference between the amount of support to which the beneficiary is legitimately allowed and the amount requested or provided. (paragraph 27)

19


In the narrow circumstance where there is evidence that an applicant has manipulated its discount rate in a deliberate attempt to defraud the government, full recovery may be appropriate. (paragraph 27)

20


In situations where the applicant would not have qualified for any support for internal connections had it properly applied the discount, the recovery would be the entire amount disbursed. (paragraph 27)

21

Recovery – Service NotProvided for Full Funding Year

If an applicant requested and received funding for a full year, and the service provider billed for the full year, but provided services for less than the full year, we believe it would be appropriate to pro-rate support and recover the excess. (paragraph 28)

22

Recovery – Inflated Price

A funding request may not be bona fide in a situation in which a service provider has charged the beneficiary an inflated price. Thus, it would be appropriate to recover amounts disbursed in excess of what similarly situated customers are normally charged in the marketplace. (paragraph 30)

23

Recovery – ExcessiveLevel of Support

In a situation in which the beneficiary has requested a clearly excessive level of support – which necessarily must be judged in the context of the specific circumstances of the school or library – it would also be appropriate to recover the full amount of the funding request, because the beneficiary has not made a bona fide request based on its reasonable needs. (paragraph 30)

24

Audit Timeframe

Second, we announce our policy regarding the timeframe in which USAC and the Commission will conduct audits or other investigations relating to use of E-rate funds. (paragraph 1)

25

Administrative Limitations Period for Audits or Other Investigations

• We will initiate and complete any inquiries to determine whether or not statutory or rule violations exist within a five year period after final delivery of service for a specific funding year. (paragraph 32)

• Into effect for Funding Year 2004 [July 1, 2004 – June 30, 2005]

26

Recovery for De Minimis Amounts

We direct USAC generally not to seek recovery when the administrative cost is greater than the recovery amount. (paragraphs 31 and 35)

27

Recovery for Patternof Rule Violations (1)

We decline at this time to adopt a rule requiring recovery of the full amount disbursed in situations in which there is a pattern of rule or statutory violations, but the specific individual violations collectively do not require recovery of all disbursed amounts. (paragraph 36)

28

Recovery for Patternof Rule Violations (2)

USAC should subject any school or library that exhibits systematic noncompliance with governing FCC rules to more rigorous scrutiny in the subsequent funding years. (paragraph 36)

29

Elimination of the Offset Options

Third, we eliminate the current option to offset amounts disbursed in violation of the statute or a rule against other funding commitments. (paragraph 1)

30

Red Light Rule Defined

We adopted a rule, section 1.1910, providing that the Commission shall withhold action on any application or request for benefits made by an entity that is delinquent in its non-tax debts owed to the Commission, and shall dismiss such applications or requests if the delinquent debt is not resolved. (paragraph 41)

31

Red Light Rule Extended

Fourth, we extend our red light rule previously adopted pursuant to the Debt Collection Improvement Act (DCIA) to bar beneficiaries or service providers from receiving additional benefits under the schools and libraries program if they have failed to satisfy any outstanding obligation to repay monies into the fund. (paragraph 1)

32

Red Light Rule – FCCRegistration Number

• We therefore amend our rules to bring all E-rate beneficiaries and service providers within the ambit of the red light rule.

• We amend our rules at 47 C.F.R. §§ 1.8002 and 1.8003 to require all entities that participate in the schools and libraries universal service support mechanism to obtain an FCC Registration Number. (paragraph 42)

33

Document RetentionRequirements Strengthened

Fifth, we adopt a strengthened document retention requirement to enhance our ability to conduct all necessary oversight and provide a stronger enforcement tool for detecting statutory and rule violations. (paragraph 1)

34

Document Retention (1)

We amend section 54.516 of our rules to require both applicants and service providers to retain all records related to the application for, receipt and delivery of discounted services for a period of five years after the last day of service delivered for a particular Funding Year. (paragraph 47)

35

Document Retention (2)

We provide for illustrative purposes the following description of documents that service providers and program beneficiaries must retain pursuant to this recordkeeping requirement, as applicable: (paragraph 48) [continued on slides 36 to 45; these examples cannot be considered exhaustive]

36

Documents – Pre-bidding Process

Beneficiaries must retain the technology plan and technology plan approval letter. If consultants are involved, beneficiaries must retain signed copies of all written agreements with E-rate consultants. (paragraph 48)

37

Documents – Bidding Process

All documents used during the competitive bidding process must be retained.– RFP(s) – evidence of publication date– Bid evaluation criteria, weighting, worksheets– All written correspondence between the

beneficiary and prospective bidders– All bids submitted, winning and losing– Documents related to the selection of service

provider(s)

38

Documents - Contracts

• Both beneficiaries and service providers must retain executed contracts, signed and dated by both parties.

• All amendments and addendums to the contracts must be retained, as well as other agreements relating to E-rate between the beneficiary and service provider, such as up-front payment arrangements.

39

Documents – Application Process

The beneficiary must retain all documents relied upon to submit the Form 471, including National School Lunch Program eligibility documentation supporting the discount percentage sought; documents to support the necessary resources certification pursuant to section 54.505 of the Commission’s rules, including budgets; and documents used to prepare the Item 21 description of services attachment.

40

Documents – Purchase and Delivery of Services

• Beneficiaries and service providers should retain all documents related to the purchase and delivery of E-rate eligible services and equipment.

• Beneficiaries must retain purchase requisitions, purchase orders, packing slips, delivery and installation records showing where equipment was delivered and installed or where services were provided.

41

Documents - Invoicing

• Both service provider and beneficiaries must retain all invoices. Beneficiaries must retain records providing payment of the invoice, such as accounts payable records, service provider statement, beneficiary check, bank statement or ACH transaction record.

• Beneficiaries must also be able to show proof of service provider payment to the beneficiary of the BEAR, if applicable.

42

Documents - Inventory

• Beneficiaries must retain asset and inventory records of equipment purchased and components of supported internal connections services sufficient to verify the location of such equipment.

• Beneficiaries must also retain detailed records documenting any transfer of equipment within three years after purchase and the reasons for such a transfer.

43

Documents – Forms andRule Compliance (1)

• All program forms, attachments and documents submitted to USAC must be retained.

• Beneficiaries and service providers must retain all official notification letters from USAC, as applicable.

44


• Beneficiaries must retain– FCC Form 470 certification pages (if not certified

electronically)– FCC Form 471 and certification pages (if not certified

electronically)– FCC Form 471 Item 21 attachments– FCC Form 479– FCC Form 486– FCC Form 500– FCC Form 472

45


Beneficiaries must also retain any documents submitted to USAC during program integrity assurance (PIA) review, Selective Review and Invoicing Review, or for SPIN change or other requests.

46

Document Retention

We emphasize that the rule we adopt here requires that program participants retain all documents necessary to demonstrate compliance with the statute and Commission rules regarding the application for, receipt, and delivery of services receiving schools and libraries discounts. (paragraph 49)

47

Document Retention - Audits

We also conclude that failing to comply with an authorized audit or other investigation conducted pursuant to section 54.516 of the Commission’s rules (e.g., failing to retain records or failing to make available required documentation) is a rule violation that may warrant recovery of universal service support monies that were previously disbursed for the time period for which such information is being sought. (paragraph 50)

48

Technology Plans

Sixth, we modify our current requirements regarding the timing, content and approval of technology plans. (paragraph 1)

49

Technology Plan Timing (1)

We revise section 54.504(b)(2)(vii) so that applicants with technology plans that have not yet been approved when they file FCC Form 470 must certify that they understand that technology plans must be approved prior to the commencement of service. (paragraph 56)

50


We emphasize that applicants still are expected to develop a technology plan prior to requesting bids on services in FCC Form 470; all that we are deferring is the timing of the approval of such plan by the state or other approved certifying body. (paragraph 56)

51


We amend our rules to require that applicants formally certify, in FCC Form 486, that the technology plans on which they based their purchases were approved before they began to receive service. (paragraph 56)

52

Technology Plan Content (1)

We conclude that technology plans should continue to focus on ensuring that technologies are used effectively to achieve educational goals rather than assuming a greater role in monitoring the procurement process. (paragraph 58)

53


USAC has already been treating technology plans approved under the Department of Education’s Enhancing Education Through Technology (EETT) as acceptable technology plans subject to one qualification. (paragraph 59)

54


USAC has required that the EETT technology plans be supplemented by an analysis that indicates that the applicant is aware of and will be able to secure the financial resources it will need to achieve its technology aims, including technology training, software, and other elements outside the coverage of the Commission’s support program. (paragraph 59)

55


We also adopt a rule that applicants that do not have EETT technology plans, must demonstrate that their plans contain the following elements:

1) establish clear goals and a realistic strategy for using telecommunications and information technology to improve education or library services;

56


2) have a professional development strategy to ensure that the staff understands how to use these new technologies to improve education or library services;

3) include an assessment of the telecommunication services, hardware, software, and other services that will be needed to improve education or library services;

57


4) provide for a sufficient budget to acquire and support the non-discounted elements of the plan: the hardware, software, professional development, and other services that will be needed to implement the strategy; and

5) include an evaluation process that enables the school or library to monitor progress toward the specified goals and make mid-course corrections in response to new developments and opportunities as they arise. (paragraph 60)

58

Technology Plan Approval

• The state is the certified technology plan approver for libraries and public schools, and we codify this practice in this order. (paragraph 55)

• Only if an applicant desires to order services beyond the scope of its existing technology plan does it need to prepare and seek timely approval of an appropriately revised technology plan. (paragraph 61)

59

Technology Plan - Recovery

A violation of the technology plan rules we adopt herein will be subject to recovery on a prospective basis. (paragraph 62)

60

Certifications – 470, 471, 473

Seventh, we amend our beneficiary certification requirements to enhance our oversight and enforcement activities. (paragraph 1)

61

Certifications – Form 470 (1)

Support under this support mechanism is conditional upon the school(s) and library(ies) securing access to all the resources, including computers, training, software, maintenance, internal connections, and electrical connections necessary to use the services purchased effectively. (paragraph 66)

62


All bids submitted will be carefully considered and the bid selected will be for the most cost-effective service or equipment offering, with price being the primary factor, and will be the most cost-effective means of meeting educational needs and technology plan goals. (paragraph 67)

63


The FCC Form 471 shall be signed by the person authorized to order telecommunications and other supported services for the eligible school, library, or consortium and shall include that person’s certification that– the entity(ies) is/are eligible to receive support

and has/have secured access to all of the resources necessary to make effective use of the service purchased;

64


– the entity(ies) is/are covered by technology plans that have been or will be approved by a state or other authorized body;

– the entity(ies) has/have complied with program rules as well as all state and local laws regarding procurement of services;

65


– the services will be used solely for educational purposes and will not be sold, resold, or transferred;

– the applicant understands that the discount level used for shared services is conditional; and

– the applicant recognizes that its application may be audited. (paragraph 68)

66


Add a new certification– All bids submitted were carefully considered

and the most cost-effective bid for services or equipment was selected, with price being the primary factor considered, and is the most cost-effective means of meeting educational needs and technology plan goals. (paragraph 69)

67


Service providers receiving funds through the E-rate program accordingly now must make the following certifications with respect to their participation in the competitive bidding process of the E-rate program in the Service Provider Annual Certification Form, FCC Form 473:

68


1. I certify that the prices in any offer that this service provider makes pursuant to the schools and libraries universal service support program have been arrived at independently, without, for the purpose of restricting competition, any consultation, communication, or agreement with any other offeror or competitor relating to (i) those prices; (ii) the intention to submit an offer, or (iii) the methods or factors used to calculate the prices offered;

69


2. I certify that the prices in any offer that this service provider makes pursuant to the schools and libraries universal service support program will not be knowingly disclosed by this service provider, directly or indirectly, to any other offeror or competitor before bid opening (in the case of a sealed bid solicitation) or contract award (in the case of a negotiated solicitation) unless otherwise required by law; and

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3. I certify that no attempt will be made by this service provider to induce any other concern to submit or not to submit an offer for the purpose of restricting competition. (paragraph 71)

71

Timely Audit Resolution Plan

Eighth, we direct USAC to submit a plan for timely audit resolution, and we delegate authority to the Chief of the Wireline Competition Bureau to resolve audit findings. (paragraph 1)

72

Annual List ofAdministrative Procedures

Finally, we direct USAC to submit on an annual basis a list of all USAC administrative procedures to the Wireline Competition Bureau (Bureau) for review and further action, if necessary, to ensure that such procedures effectively serve our objective of preventing waste, fraud and abuse. (paragraph 1)

73

Future Orders

We intend to address additional issues relating to competitive bidding and the discount matrix in one or more forthcoming orders. (footnote 2)

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FCC Fifth Report and Order

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-190A1.pdf



1 FCC Fifth Report and Order Excerpts from the Order FCC 04-190 Adopted: August 4, 2004 Released: August 13, 2004.

Documents

recovery of funds

commission rules

violation of procedural

disbursement of funds

procedural rules applicants

violation amounts

usac plan

beneficiary signs